WASHINGTON (JTA) — Kenneth Marcus has worked for years inside and outside government to advocate for civil liberties. He has also been involved for years in Jewish community advocacy.
Now Marcus, the founder and president of the Louis S. Brandeis Center for Human Rights Under Law, is up for a prestigious job at the Department of Education — assistant secretary for civil rights. On Thursday, the Senate Health and Education Committee approved Marcus along party lines, and now his nomination goes to the full Senate.
In recent weeks, my inbox has been cluttered with statements pushing a narrative that what’s keeping Democrats from backing Marcus is his role in fighting the Boycott, Divestment and Sanctions movement targeting Israel.
What’s remarkable is that both sides of the BDS equation — the movement’s supporters and opponents — are colluding unintentionally in advancing the narrative.
Groups that back BDS have argued against Marcus’s nomination, pointing to his aggressive tactics while heading the Brandeis Center to counter anti-Israel activities on campus by defining them as an attack on the civil rights of Jewish students. Two organizations, Palestine Legal and Jewish Voice for Peace, have lobbied hard against Marcus.
“Marcus not only poses a danger to those who advocate for Palestinian human rights, but to all students and to the spirit of the university itself,” Jewish Voice for Peace said in a statement following the committee vote.
Which makes sense — interest groups nudging their issue to the center is not new. What is not immediately clear is why organizations ostensibly committed to making BDS go away are giving their issue oxygen.
A coalition of 60 pro-Israel groups wrote a letter Jan. 15, before the committee vote, urging the panel to approve Marcus across party lines. It included a statement from Jeff Robbins, a Democrat and Clinton-era US delegate to what was then the UN Human Rights Commission, noting that the nomination “has been bitterly criticized by the fringe and unhinged groups who operate something of an anti-Semitism lobby. Democrats in the Senate would do well not to fall for it.”
But why bring it up when Democrats in the Senate barely seem to be paying attention to criticism of the nominee’s posture on Israel or anti-Semitism? Notably, no major centrist or liberal group signed on to the letter; the signatories trend conservative and hawkish in Israel, including Americans for a Safe Israel, CAMERA and the Zionist Organization of America. I asked the publicist who is touting the letter why the groups are making Israel a central issue when there is little evidence it is a central issue. She said she would canvas the signatories, but by press time she did not come up with a reply.
On Dec. 5, I logged into the Senate Health and Education Committee website and listened to hours of Marcus being grilled and praised. Not once did BDS come up.
Yet now The New York Times has taken up the narrative, framing Marcus’s Israel advocacy as central to the controversy over his nomination. “An Advocate for Israel Draws Fire as He Nears Confirmation to Civil Rights Post” was the headline Thursday on its website.
Only twice did I hear a reference to Marcus’s Jewish advocacy during his committee appearance. The first time, in introducing Marcus, the committee’s chairman, Sen. Lamar Alexander, R-Tenn., picked from a pile of endorsements before him a letter from Hillel International describing Marcus as “a longtime champion for civil rights and for college students.”
The second was when Sen. Susan Collins, R-Maine, noted that the Brandeis Center had as its focus anti-Semitism; she wanted to know if he was capable of taking on “all hate crimes.”
“I would work to improve the civil rights protections of all students,” he answered, and Collins was satisfied.
That was it, as far as I could tell. Most of the hearing was focused on gender and race equity.
Certainly, Democrats on the committee were adversarial toward Marcus. He is a conservative, and his perspective on civil liberties is cut from that cloth. Patty Murray, D-Wash., the top Democrat on the committee, focused almost entirely on Marcus’s support of Education Secretary Betsy DeVos’s rollback of Obama administration guidelines that emphasize the rights of alleged victims in campus sexual assault cases.
Marcus, who served in similar civil rights positions in the George W. Bush administration, also has opposed affirmative action and resisted pursuing bias cases without evidence that there is intent behind the bias. He has also opposed equalities for LGBTQ Americans, but told the committee that his views in that area had “evolved.”
Murray asked Marcus to “name a single example of something President Trump has said or done when it comes to discrimination or women’s rights or civil rights you disagree with.” Marcus could not, which in the current political environment would doom any candidate from accruing substantive Democratic support.
The Leadership Conference on Civil and Human Rights, in its objections to Marcus, focuses on race and gender and offers a single allusion to his anti-BDS activism.
“In his work since his service at the Department of Education, Mr. Marcus has sought to use the [Office of Civil Rights] complaint process to chill a particular political point of view, rather than address unlawful discrimination,” it says deep into a statement released before the committee vote. It does not mention Israel explicitly.
An action alert emailed Friday to Leadership Conference members urging them to call senators to oppose Marcus does not allude to Israel at all.
One major group, the American Jewish Committee, did speak out, objecting to the Leadership Conference’s take on Marcus and defending his efforts to fight campus anti-Semitism and BDS.
“Marcus has repeatedly made clear that he did not believe that, as the LCCHR letter implies, mere criticism of Israel was actionable under Title VI,” an AJC statement said. “On the contrary, Mr. Marcus has repeatedly stated that most such criticism is protected speech.”
The AJC’s general counsel, Marc Stern, told me on Friday that the AJC, as a founding and constituent member of the Leadership Conference, felt it necessary to speak out against any bid to delegitimate Marcus’ work countering anti-Israel activity on campus.
“It’s a straw in the wind,” he said, pointing to increasing comfort among liberals with attacks on Israel. “The fact that [the Leadership Conference] thinks it’s not going to hurt them with their Democratic base should be of concern to Jewish groups. Thirty years ago, they thought there would be a backlash. Now there is no backlash.”
But Stern also dismissed the notion that positions on Israel were central to opposition to Marcus.
“If Marcus had never breathed a word of Israel and Palestinians on campuses,” he said, “you would have had all those other issues raised.”